People v. Hawkins

Annotate this Case
People v. Hawkins, No. 82112 (1/28/98)

Docket No. 82112--Agenda 9--September 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EARL
HAWKINS et al., Appellees.
Opinion filed January 29, 1998.

JUSTICE McMORROW delivered the opinion of the court:
The State of Illinois initiated this direct appeal from an order entered in the
circuit court of Cook County, which vacated defendants' convictions for murder,
vacated their death sentences and ordered a new trial. 134 Ill. 2d R. 651. Pursuant
to the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1992)),
Judge Deborah Dooling ruled that defendants failed to receive a fair trial because
the judge in the underlying criminal trial accepted a bribe to acquit defendants of
murder charges alleged against them.
This court previously affirmed defendants' convictions and death sentences
on direct appeal. People v. Fields, 135 Ill. 2d 18 (1990). Since the facts
underlying defendants' convictions are discussed in detail in Fields, we set forth
here only those facts relevant to the issue before us, namely, whether the circuit
court's decision to grant defendants post-conviction relief was manifestly
erroneous. We affirm.

BACKGROUND
On April 28, 1984, Jerome "Fuddy" Smith and Talman Hickman, reputedly
members of the Black Gangsters Goon Squad Gang, were shot to death outside
of a public housing complex. The State charged defendant Earl Hawkins, George
Carter and defendant Nathson Fields, members of the rival El Rukn gang, with
those murders. The circuit court of Cook County, former Judge Thomas Maloney
(hereinafter Maloney) presiding, found defendants guilty of first degree murder for
the deaths of Smith and Hickman following a bench trial.[fn1] Both Hawkins and
Fields waived their right to a jury determination of their eligibility for the death
penalty, but asserted their right to a jury for the aggravation and mitigation phase.
A jury found no mitigating circumstances to preclude imposition of the death
penalty, and on September 19, 1986, Maloney entered a judgment of conviction
against defendants, and sentenced Hawkins and Fields to death. Neither
defendant's post-trial motion nor their initial post-conviction petitions contained
any allegations of illegality by Maloney or any officer of the court. On February
16, 1990, this court affirmed defendants' convictions on direct appeal. People v.
Fields, 135 Ill. 2d 18 (1990).
On June 26, 1991, a federal grand jury returned a four-count indictment
against Maloney and attorneys William Swano and Robert McGee. Swano
represented Hawkins during the murder trial before Maloney. McGee was a former
associate of Maloney in private practice and acted as Maloney's intermediary with
those who wished to bribe the judge.
The United States alleged that over the course of several years, Judge
Maloney accepted bribes to influence the outcome of cases pending before him.
The government charged Maloney with racketeering conspiracy, racketeering,
extortion under color of official right and obstruction of justice, in violation of 18
U.S.C. secs. 1962(c), (d), 1951, 1503 (1994). The indictment alleged, among other
criminal acts, that Swano, with McGee acting as a go-between, forwarded a
$10,000 bribe to Maloney to acquit defendants in the Hawkins/Fields trial. The
indictment also asserted that Maloney accepted bribes on at least four other
occasions to fix the outcome of criminal trials, and that on three of those
occasions, Swano acted as briber.
Prior to the commencement of the trial of Maloney and McGee (United
States v. Maloney, 71 F.3d 645 (7th Cir. 1995)), Swano and Hawkins agreed to
testify on behalf of the United States. Testimony from other witnesses, telephone
records, videotaped conversations, recorded telephone conversations, and evidence
gathered through FBI surveillance corroborated the trial testimony of Hawkins and
Swano. McGee testified at trial, but denied the allegations of criminal conduct.
Maloney did not testify.
Evidence adduced at the Maloney trial demonstrated that between the
summer of 1985 and early 1986, Swano met several times with his client,
Hawkins. Swano informed Hawkins that Swano had bribed Maloney in previous
instances, and that Hawkins' case could be "fixed," meaning an acquittal could be
obtained, in return for a bribe to Maloney. Hawkins agreed to the scheme and
identified Alan Knox as the member of the El Rukn leadership Swano could
contact to obtain money for a bribe. Swano met Knox and received a "go ahead"
to proceed with the bribe, and an assurance that the El Rukns would furnish the
cash.
In January or February 1986, Swano contacted McGee and told McGee he
wanted to talk about a "hot case" in front of Maloney. In a subsequent meeting,
McGee informed Swano that Maloney authorized a discussion between McGee
and Swano about the case. Swano gave McGee items from the case file and told
McGee he could get $10,000 from the El Rukns to pay the judge.
Within one or two weeks, McGee contacted Swano and told Swano they
could "do the fix" for $10,000, but that the defense had to present a "good case."
McGee said the judge was worried about "looking bad" on a double-murder case.
On the first day of trial, Knox appeared at court with $10,000. Swano
transferred the money to a folder and, after the day's proceedings, gave the money
to McGee at a restaurant. Two days later, on June 19, 1986, McGee telephoned
Swano and told Swano in coded language that he wanted to give the money back
to Swano. When Swano asked why, McGee stated that the "State witnesses were
too good and the case was going to[o] good for the State." Swano replied "that's
ridiculous," told McGee that the State's witnesses were "terrible," and complained
that the defense had not had an opportunity to put on its case. He told McGee to
keep the money. Swano then told Hawkins that the fix might not go through, that
there may have been a leak regarding the fix from the El Rukns to the FBI, and
that the judge was scared.
According to Swano, he spoke to Maloney the following day and said,
"We got an agreement on this, I'm going to live up to my bargain, you've got to
live up to yours." The judge replied, "Put on your case and we'll see." Swano
spoke directly to Maloney again, on the first day the defendants presented
evidence in their cases. Outside of the judge's chambers, Maloney asked Swano
if Swano's witnesses were ready. Swano affirmed and said, "[T]hey are good, as
we agreed they would be." Maloney replied, "Let's put them on."
Closing arguments concluded on June 25, 1986. Maloney advised the
parties he would review the evidence and render a decision the following day. On
the evening of June 25, McGee informed Swano that Maloney would not fix the
case. When Swano arrived at Maloney's courtroom the next morning, the judge
informed him that a lawyer had left a file folder for Swano, and that Swano
should ask a sheriff to get it for him. The sheriff could not locate the folder, and
when the sheriff asked the judge where he could find it, the judge retrieved the
folder from his own desk and handed it to Swano. It was the same folder Swano
had given McGee, and it contained $10,000. The judge entered his finding of
guilty against both Hawkins and Fields later that same day.
On April 16, 1993, a federal jury found Maloney guilty on all counts of
the indictment. The United States Court of Appeals for the Seventh Circuit
affirmed the conviction by decision rendered November 29, 1995.
Fields and Hawkins filed amended post-conviction petitions (725 ILCS
5/122--1 et seq. (West 1992)) on September 8, 1992, and April 17, 1996,
respectively. Both requested vacatur of the circuit court's verdict and convictions,
and a hearing to offer proof of the allegations in their petitions. Defendants
insisted that Maloney's acceptance of a bribe, its subsequent return and the judge's
suspicion of a FBI investigation into his conduct "created a conflict of interest for
Judge Maloney." They maintained that Maloney's self-interest prompted him to
convict defendants to prove to federal authorities that no wrongdoing occurred on
Maloney's part. Maloney's lack of impartiality in the outcome of their trial,
defendants urged, deprived them of due process as guaranteed under the United
States and Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art.
I, secs. 2, 11.
Following argument, Judge Deborah Dooling of the circuit court of Cook
County entered an order on September 18, 1996, granting defendants' amended
petitions, vacating their convictions and ordering a new trial. Judge Dooling noted
initially that the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West
1992)) does not require the circuit court to conduct an evidentiary proceeding
regarding defendants' complaints, and that the statute vests the court with broad
discretion to identify the evidence the court will consider in ruling on a petition.
Judge Dooling found that the record before the court, consisting of pleadings, the
trial transcript from United States v. Maloney, affidavits from Fields and his
attorney, and the transcripts of "the state cases of Earl Hawkins and Nathson
Fields" obviated a need for an evidentiary hearing in the instant matter. Judge
Dooling ruled as well that defendants were denied a "fair trial before an impartial
trier of fact" because Maloney had a "direct, personal, substantial, pecuniary
interest" in the outcome of the Hawkins/Fields trial.
Judge Dooling rejected each of the arguments raised by the State in
opposition to defendants' cause. Judge Dooling found that Fields and Hawkins had
not waived their right to pursue post-conviction relief; that relief would not be
barred by Hawkins' and Fields' own participation in the bribery scheme; and that
Fields and Hawkins need not show actual bias by Maloney in order to prevail.
The State initiated this direct appeal pursuant to Illinois Supreme Court
Rule 651 (134 Ill. 2d R. 651).

ANALYSIS
I. Standard of Review
A proceeding brought pursuant to the Post-Conviction Hearing Act (725
ILCS 5/122--1 et seq. (West 1992)) is not a direct appeal but a collateral attack
on a judgment of conviction. People v. Franklin, 167 Ill. 2d 1, 9 (1995). The Act
permits the petitioner to identify constitutional violations occurring at trial that
could not be and were not previously adjudicated. People v. Foster, 168 Ill. 2d 465, 473-74 (1995). To win immediate relief or the right to an evidentiary hearing
of his constitutional claims, the petitioner bears the burden of showing a
substantial deprivation of his constitutional rights. Foster, 168 Ill. 2d at 473-74.
The trial court may in its discretion forgo an evidentiary hearing and grant the
petition solely on the strength of the petition and responsive pleadings. See 725
ILCS 5/122--6 (West 1992); see also People v. Reed, 84 Ill. App. 3d 1030, 1040
(1980). We will disturb the circuit court's ruling in a post-conviction proceeding
only if it is manifestly erroneous (Foster, 168 Ill. 2d at 474), i.e., if it contains
error that is "clearly evident, plain, and indisputable." People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997).

II. Due Process
A fair trial in a fair tribunal is a basic requirement of due process. Bracy
v. Gramley, 520 U.S. ___, ___, 138 L. Ed. 2d 97, 104, 117 S. Ct. 1793, 1797
(1997); In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623,
625 (1955). Fairness at trial requires not only the absence of actual bias but also
the absence of the probability of bias. In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625. To this end, no person is permitted to judge cases in
which he or she has an interest in the outcome. Bracy, 520 U.S. at ___, 138 L. Ed. 2d at 104, 117 S. Ct. at 1797; In re Murchison, 349 U.S. at 136, 99 L. Ed. at
946, 75 S. Ct. at 625. "Every procedure which would offer a possible temptation
to the average man as a judge to forget the burden of proof required to convict the
defendant, or which might lead him not to hold the balance nice, clear and true
between the state and the accused denies the latter due process of law." Tumey v.
Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444 (1927); see also
Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 822, 89 L. Ed. 2d 823, 833,
106 S. Ct. 1580, 1585 (1986); Ward v. Village of Monroeville, 409 U.S. 57, 60,
34 L. Ed. 2d 267, 270-71, 93 S. Ct. 80, 83 (1972).
Because our inquiry is limited to whether Maloney could have been
tempted not to hold the balance between the parties " ` "nice, clear and true" ' "
(Aetna Life Insurance Co., 475 U.S. at 822, 89 L. Ed. 2d at 833, 106 S. Ct. at
1585; Ward, 409 U.S. at 60, 34 L. Ed. 2d at 271, 93 S. Ct. at 83; Tumey, 272 U.S. at 532, 71 L. Ed. at 758, 47 S. Ct. at 444), defendants need not show actual bias
by the trier of fact in order to be granted a new trial. As the United States
Supreme Court stated in In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625, due process will sometimes "bar trial by judges who have no actual
bias and would do their very best to weigh the scales of justice equally between
contending parties. But to perform its high function in the best way `justice must
satisfy the appearance of justice.' "
In this appeal, we find that Maloney possessed and actively cultivated a
personal, pecuniary interest in the outcome of defendants' case. Evidence admitted
at the trial of Maloney and McGee demonstrated, beyond a reasonable doubt, that
Maloney traded verdicts for bribes. Swano and Hawkins testified that they
conspired with McGee and Maloney to purchase an outcome amenable to Hawkins
in his own murder trial. Knowing from past experience that Maloney could be
bribed, Swano approached McGee to convey the availability of a $10,000 bribe
to Maloney. Again using McGee as an intermediary, Maloney communicated that
he would accept a bribe, with certain conditions. By this action, he signalled his
readiness to skew the outcome of the trial in order to earn $10,000 for himself.
That Maloney subsequently returned the money did not render his interest
in the outcome any less acute. As defendants suggest, he wanted to insure that he
did not lose his judicial post and salary as a result of a criminal indictment, and
therefore was motivated to return a verdict that would not spark the suspicions of
authorities.
Record evidence supports the conclusion that Maloney knew the FBI was
watching him. The Hawkins/Fields trial occurred in June 1986. By that date,
several judges presiding at 26th Street and California, where Maloney sat, had
been convicted or indicted in Operation Greylord for soliciting bribes. FBI agents
testified at trial that they monitored Maloney's courtroom during the trial of the
Hawkins/Fields matter. Hawkins testified that on June 19, the first date that the
judge expressed interest in returning the money, Swano told Hawkins that
Maloney wanted to disavow their agreement, and told Hawkins that perhaps
information had been leaked from the El Rukns to the FBI. After the trial ended,
moreover, Maloney warned Lucius Robinson, Maloney's intermediary of choice
before McGee, to "watch Swano, he might be wearing a wire."
The State concedes that defendants did not receive a fair trial before
Maloney. However, the State articulates four arguments, grounded in equity, for
the proposition that the circuit court's order must be reversed, regardless of any
affront to defendants' due process rights. None of the State's contentions persuade
us that defendants are any less deserving of fundamental constitutional guarantees
than any other litigant.

III. Waiver
Initially, the State maintains that defendants waived their right to attack
their convictions on due process grounds. Relying on People v. Titone, 151 Ill. 2d 19 (1992), the State contends that defendants knew that they were denied an
impartial trier of fact at the moment of their conviction and knew that "the bribe
did not work." The State reasons that defendants thus should have raised any
constitutional infirmity arising from the bribe "then and there."
Waiver is a rule of administrative convenience, not a jurisdictional or
absolute bar to procedurally defaulted claims. People v. Whitehead, 169 Ill. 2d 355, 371 (1996). In addition, strict application of the waiver rule may be relaxed
in certain instances, including when the factual insufficiency of the record on
appeal prevented an appellant from raising an issue before the reviewing court.
Whitehead, 169 Ill. 2d at 371-72. This exception is triggered when the evidentiary
basis for a claim lies outside the record, and not by the mere failure of a party to
present or raise a claim. Whitehead, 169 Ill. 2d at 372.
As made plain at Maloney's federal trial, the transactions surrounding the
bribe occurred in clandestine locales like the lock up of Cook County jail, the
antechamber to the judge's office, restaurants and El Rukn headquarters. Clearly
the transactions did not and would not occur within earshot of a court reporter, nor
would they be memorialized in any document filed with the court. The facts
forming the basis for defendants' due process claims were plainly dehors the
common law record on direct appeal, and could not come before any tribunal
unless and until they were aired in federal court by indictment and by trial.
Accordingly, we agree with the circuit court's assessment that defendants did not
waive their due process claims.

IV. Laches
Before this court, the State also contends for the first time that defendants'
claims are barred by laches. We find that the State waived this argument, and that,
regardless of waiver, the argument is meritless.
The State never asserted before the circuit court that the laches doctrine
barred defendants' claim. Issues not raised in the circuit court are generally
considered waived on appeal. People v. O'Neal, 104 Ill. 2d 399, 407 (1984); see
also People v. Harris, 129 Ill. 2d 123, 171 (1989). The principle of waiver applies
as equally to the State as it does to a defendant in a criminal matter. O'Neal, 104 Ill. 2d at 407.
The State argues that the equitable doctrine of laches should be applied to
the case at bar, and urges this court to find, as a matter of fairness, that the
constitutional assault on defendants' convictions must proceed no further. Laches
bars recovery by a litigant whose unreasonable delay in bringing an action for
relief prejudices the rights of the opposing party. Tully v. State, 143 Ill. 2d 425,
432 (1991); People ex rel. Daley v. Strayhorn, 121 Ill. 2d 470, 482 (1988). Courts
are reluctant to aid a party who has knowingly failed to exercise his rights to the
detriment of an opposing party. Tully, 143 Ill. 2d at 432. Application of the laches
doctrine requires a showing of (1) a lack of diligence by the party asserting the
claim; and (2) prejudice to the opposing party as a result of the delay. Tully, 143 Ill. 2d at 432.
The State complains that Hawkins first claimed the lack of a fair trial
because of the bribe in 1996: 10 years after his conviction and 10 years after the
failure of the bribe which Hawkins initiated. Fields fares little better in the State's
assessment: he neglected to raise the argument until 1992. The State sees
defendants' delay as an inexcusable lack of diligence.
Moreover, the State argues that the unique facts of this case render
defendants' delay particularly prejudicial to the State. The State's witnesses that
testified at the first trial are likely dead or imprisoned, the State insists, and those
that are readily available to testify may recant their original trial testimony, since
recantation is a frequent occurrence where the criminal participants have gang
affiliations.
With regard to Fields, the lapse of time between the bribe and the filing
of his amended post-conviction petition is understandable when this court
considers that Fields professed to know nothing of the bribe until 1991; he filed
his amended petition in 1992; and he moved for judgment on the petition less than
four months after Maloney's appeals were finally exhausted. While Hawkins may
not have filed his amended petition with the same alacrity, he testified that he
brought the fact of the bribe to the attention of the Cook County State's
Attorney's and United States Attorney's offices in 1987. By his amended petition,
moreover, he alleged within one month after Maloney exhausted his appeals that
Maloney's corruption deprived him of a fair trial. Furthermore, both Fields and
Hawkins contend that they and the State agreed not to request a ruling on the
amended post-conviction petitions until Maloney was tried. While the record
yields no evidence of such an agreement, we note that the State delayed moving
to dismiss Fields' petition until December 5, 1994, more than two years after it
was filed. The State is therefore at least partially responsible for defendants' delay.
We find that such circumstances militate against employment of the laches
doctrine.

V. Clean-Hands Doctrine
The State argues strenuously for application of the "clean-hands" doctrine
to this case. The State believes that this equity-based concept should preclude
Hawkins[fn2] from benefitting from his own illegal conduct. Because Hawkins
caused the unfair trial by attempting to bribe Maloney, the State reasons, he
should not gain by his own malfeasance through the reward of a new trial.
The cases cited by the State do not persuade, however. None employ the
clean-hands doctrine in the criminal setting, and none decide whether a
constitutional violation of the magnitude found here can be nevertheless
overlooked because of the complaining party's own impurity.
Instead, we are persuaded by the rationale employed in two factually
similar cases cited by defendants. In United States v. Forrest, 620 F.2d 446 (5th
Cir. 1980), a jury found defendant William Forrest guilty of buying, receiving and
possessing stolen goods. On appeal, the defendant requested a new trial, asserting
that an incident of alleged jury tampering deprived him of a trial by a fair and
impartial jury. The Court of Appeals specifically considered and rejected a clean-
hands analysis:
"It makes no difference in this case that it was Forrest
himself who initiated the contact that may have poisoned the jury.
We reject the suggestion that Forrest may not be heard here to
complain of the results of his own misconduct. He has been
convicted of jury tampering and for that misconduct is subject to
punishment. That is an entirely discrete matter. At issue *** in this
case was whether Forrest had dealt with stolen goods, not whether
he had tried to corrupt the judicial system. A fair and impartial jury
cannot be permitted to draw the conclusion that, because a
defendant attempted to fix his trial, he is guilty of the offense for
which he is being tried. It is conceivable that a defendant, innocent
of the charge being tried, might attempt to tamper with a jury to
assure a favorable verdict." Forrest, 620 F.2d at 458.
In Zilich v. Reid, 36 F.3d 317, 321 (3d Cir. 1994), the defendant sought a
petition for writ of habeas corpus, because the guilty plea entered by the
defendant upon charges of indecent assault and corruption of a minor was,
according to the defendant, obtained involuntarily. The court of appeals reversed
the denial of the petition and remanded for an evidentiary hearing.
The Zilich court observed that a guilty plea induced by promises that divest
the plea of its voluntary character is void.
"This fundamental rule is not altered where, as here, a defendant
alleges that he was expecting a certain sentence based upon his
own illegal conduct. Where surrender of a fundamental
constitutional right is concerned, our inquiry can not be focused
upon the `clean hands' of the defendant. Instead, we must focus
upon the `voluntariness' of the surrender." Zilich, 36 F.3d at 321.
The case sub judice also confronts us with the alleged loss of a
fundamental constitutional right. That defendants may have contributed to the
corruption of an impartial fact finder is immaterial to our immediate inquiry of
whether they were denied a fair trial. As in Forrest, a distinct punishment exists
for those attempting bribery of a judge. See 730 ILCS 5/5--8--1, 5--8--2 (West
1992). The penalty prescribed by statute for bribery is the proper means of
addressing that conduct. Allowing the State to execute defendants as "punishment"
for their "unclean hands" is not an acceptable alternative.

VI. Injected Error
The State raises the injected-error doctrine, which posits that "it is
manifestly unfair for a party to expect a second trial on the basis of an error
which that party injected into the proceedings." Citing People v. Gacy, 103 Ill. 2d 1 (1984); People v. Scott, 148 Ill. 2d 479 (1992); People v. Taylor, 101 Ill. 2d 508
(1984); Ervin v. Sears, Roebuck & Co., 65 Ill. 2d 140 (1976). We find the
reasoning animating the injected-error doctrine similar to the logic underpinning
the clean-hands doctrine. In both instances, the law is understandably reluctant to
aid litigants responsible for the very errors of which they complain. Nevertheless,
this court conceded in Ervin that "there might be unusual circumstances under
which the interests of justice require a relaxation of this rule." Ervin, 65 Ill. 2d at
145. We believe this is one such instance.
As stated in Forrest, 620 F.2d 446, Hawkins' attempt to influence the
outcome of this case bears its own separate penalties. If Hawkins deserves
punishment for bribing Maloney, the penalty should be the one prescribed by
statute, and not the loss of his life. We note too that, unlike each decision cited
by the State, Hawkins is not solely responsible for the error that stripped the trial
of due process protections. See, e.g., People v. Gacy, 103 Ill. 2d 1, 74 (1984)
(court ruled defendant could not inject error into case by insisting for first time
on appeal that evidence to which he stipulated at trial regarding his sanity was
improperly admitted as an aggravating factor for sentencing purposes); People v.
Scott, 148 Ill. 2d 479, 508 (1992) (court ruled that defendant introducing evidence
of his psychiatric condition to cross-examine expert could not later argue the
evidence was improperly admitted); People v. Taylor, 101 Ill. 2d 508, 522-23
(1984) (where the alleged instances of ineffective assistance of counsel were due
to defendant's "uncooperative and disruptive conduct," this court refused to
reverse on the basis of that issue); Ervin v. Sears, Roebuck & Co., 65 Ill. 2d 140,
144-45 (1976) (court found that parties could not procure new trial on basis of
allegedly erroneous instructions they caused to be given to jury). We understand
that no bribe would have occurred had the El Rukns not produced the money at
Swano's and Hawkins' urging. It is equally true, however, that no bribe would
have occurred had Judge Maloney not been willing to accept the bribe. The severe
penalty recommended by the State for Hawkins' misconduct seems even more
disproportionate when we consider that the trial judge encouraged defendants to
"inject error" into the trial by signalling that he could be bribed.

VII. Public Policy
The State argues that Fields and Hawkins were convicted of a double
murder and that this court previously affirmed those convictions. Nevertheless, the
sole fact of the convictions cannot restore integrity to a trial that was fatally
flawed. The present appeal may be analogized to Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986). There, an all-white grand jury
returned a murder indictment against the African-American defendant. The
defendant was subsequently convicted of murder. Defendant sued in the federal
courts for a writ of habeas corpus, contending that a conviction following
indictment by a grand jury from which the members of any race are systematically
excluded violated his equal protection rights. The Vasquez Court affirmed the
vacatur of the defendant's conviction, relying in part on Tumey, and ruled that
when a question arises as to the objectivity of those "charged with bringing a
defendant to judgment," the structural integrity of the whole process is suspect,
and it cannot be restored by a presumption of regularity or an evaluation of the
resulting harm. Thus,
"[A] conviction cannot be understood to cure the taint
attributable to a charging body selected on the basis of race. Once
having found discrimination in the selection of a grand jury, we
simply cannot know that the need to indict would have been
assessed in the same way by a grand jury properly constituted. The
overriding imperative to eliminate this systemic flaw in the
charging process, as well as the difficulty of assessing its effect on
any given defendant, requires our continued adherence to a rule of
mandatory reversal." Vasquez, 474 U.S at 264, 88 L. Ed. 2d at 609,
106 S. Ct. at 624.
Similarly, defendants' convictions in the case sub judice do not, in and of
themselves, remove the taint introduced into the trial by the bribe. Having
determined that due process was lacking in the criminal proceedings, it is
impossible for this court to know whether the verdict would have been the same
if rendered by an uncorrupted judge. The "overriding imperative" of the need for
due process when life, liberty or property are at stake, as well as the difficulty in
detecting bias except in its most overt forms (see Bracy v. Gramley, 81 F.3d 684,
702 (7th Cir. 1996) (Rovner, J., dissenting)), makes vacatur of the judgment on
defendants' convictions, and the initiation of a new trial on all issues, necessary
here.
Furthermore, the court acknowledged in Fields, 135 Ill. 2d 18, that the
evidence against Fields and Hawkins was not without inconsistencies, and that it
was because of the great deference accorded the trier of fact in cases like this that
the convictions were allowed to stand.
"The trial court chose, it would appear, to believe the testimony of
the State's witnesses and not that of the defense witnesses. While
discrepancies in the evidence certainly existed, we cannot say that
the trial court's conclusion was so unreasonable, improbable or
unsatisfactory as to justify a reasonable doubt as to the defendants'
guilt. [Citations.] Accordingly, we hold that the evidence, believed
by the trial court, was sufficient to prove the defendants guilty of
the murders of Jerome Smith and Talman Hickman beyond a
reasonable doubt." Fields, 135 Ill. 2d at 49.
On retrial, defendants may be found guilty again. If so, we do not believe
it will be either a preordained result or the fruit of a useless exercise. Rather, the
courts and the parties will know that the verdict will be the product of a fair trial.
The State maintains too that, as a practical matter, retrying these
defendants will be difficult. According to the State, the usual concerns prompted
by the passage of time are compounded in "gang" cases by the frequent "flipping"
of State witnesses, i.e., the unsettling proclivity of these witnesses to recant prior
testimony.
While we are not unsympathetic to the difficulties presented by retrials,
particularly years after the crime charged, we believe that any hardships
anticipated on remand are outweighed by the gravity of the constitutional violation
in this case that can be cured only by a new trial. Additionally, as noted in Fields,
135 Ill. 2d 18, at least one of the State's key witnesses flipped during the course
of the Hawkins/Fields trial, so that the impeachment threat posed by recantations
has already occurred. We observe as well that the problems posed by recantations
are not limited to the State's case; the conundrum of inconsistent testimony was
visited upon the defendants' case too, when three defense witnesses gave trial
testimony inconsistent with statements previously given to police. Fields, 135 Ill. 2d 18.
The State predicts other negative consequences should we affirm Judge
Dooling's order. For example, the State fears that attempts to bribe judges will
become an accepted trial tactic. The State envisions the following "win/win"
scenario for criminal defendants: if a judge accepts a bribe and acquits them, they
win their freedom, as well as a good chance that no one will discover their
crooked enterprise; if the judge returns the bribe, however, defendants can insist
on a new trial and, in the words of the State, they will "have benefitted from the
delay."
We note that anyone attempting to bribe a judge faces a potential felony
prosecution (730 ILCS 5/5--8--1, 5--8--2 (West 1996)), and that an attorney faces
the additional penalty of loss of licensure. 134 Ill. 2d Rs. 771, 3.3, 8.4. We
believe that the prospect of additional criminal charges will deter litigants from
employing bribery as a "normal course of trial strategy." See also Forrest, 620 F.2d at 458 (court rejected similar argument where defendant was accused of jury
tampering in an attempt to influence the outcome of his case and, on appeal,
argued that he had been denied a fair trial).
The Constitution demands that we enforce its terms uniformly. The result
we reach today is mandated solely by the infirmity of a trial that resulted in the
imposition of the death sentence on two men, and not by any consideration for the
character of the individuals involved.
We are reminded of the observation of Judge Rovner in her dissent in
Bracy v. Gramley, 81 F.3d 684, 703 (7th Cir. 1996):
"The Constitution was not written for easy cases and likeable
defendants, and we are sworn to uphold it no matter what the
result. Knowing full well the perils that may confront us if we
insist that defendants be given trials before honest judges, [we]
believe we have no choice but to take the first step down that path
here. We cannot turn our backs on the Constitution, especially
when the defendants' very lives are at stake."

VIII. Evidentiary Hearing
An issue remains as to whether both Hawkins and Fields should get a new
trial, or whether the matter should be remanded for an evidentiary hearing
concerning Fields' involvement in the bribe. Fields argued before Judge Dooling
that neither he nor his trial attorney, Jack Smeeton, had any knowledge of the
bribe until well after his trial ended. Both Smeeton and Fields filed affidavits
attesting to their innocence in this regard. Also before Judge Dooling, however,
were the transcripts of the Maloney trial, containing contradictory evidence on this
subject. Swano did not recall Fields' presence during meetings where the bribery
scheme was hatched and refined. Nevertheless, Hawkins testified that Fields was
with Hawkins on at least one occasion when Hawkins discussed the bribe with
Swano. Moreover, uncontradicted evidence demonstrates that the $10,000 used to
bribe Maloney came not from either petitioner or even their families, but rather
from the El Rukn gang, as approved by the highest authorities in the gang. Both
Hawkins and Fields were El Rukn members.
Judge Dooling indicated her belief that both defendants were involved in
the bribery scheme. In her order she stated:
"Thus, the claims of defendants Hawkins and Fields are not
barred by their participation in the bribe of Judge Maloney.
Hawkins concedes his involvement in said illegal conduct while
Fields denies knowledge of the fix. Regardless of what the
defendants claim, the State could have charged both of them with
bribery."
We do not find Judge Dooling's conclusions manifestly erroneous and
therefore believe that no further evidentiary hearing on the matter is necessary.
Judge Dooling's factual finding distinguishes the instant matter from cases
like Cartalino v. Washington, No. 96--4002 (7th Cir. July 31, 1997), in which
defendant Cartalino and another man named Bridges were simultaneously tried for
murder before Judge Michael Close. Bridges elected to be tried before Judge
Close alone; Cartalino exercised his right to a jury. In a habeas proceeding before
the United States District Court for the Northern District of Illinois, Cartalino
maintained he had been denied a fair trial before an impartial trier of fact. The
district court found that Judge Close accepted a bribe from Bridges to acquit
Bridges. However, no finding was made regarding Cartalino's involvement, if any,
in the bribery scheme. While some evidence suggested that Bridges persuaded
Judge Close to see to it that Cartalino "took the fall" for the crime, the district
court neglected to address the question of whether the trial judge's bias extended
to Cartalino.
The Seventh Circuit vacated the dismissal of Cartalino's application for a
writ of habeas corpus, and remanded the matter to the district court for an
evidentiary hearing. The fact that a judge has been bribed in some cases does not
automatically establish that he was not impartial in others, the Seventh Circuit
concluded. Cartalino, No. 96--4002. Before the court decided if Cartalino's
constitutional rights had been violated, the district court needed to determine
whether the bribery scheme included Cartalino's conviction. Cartalino, No. 96--
4002.
Assuming arguendo that Fields was entirely unaware of the plot to bribe
Maloney, we think the unrefuted evidence of the El Rukns' participation in the
bribe compels the same result. In other words, even if Fields knew nothing of the
bribe, the fact that the gang to which he belonged paid the judge inexorably
suggests that the bribe was intended to benefit both Hawkins and Fields, and that
Maloney was to acquit both men. Therefore, regardless of whether Fields himself
bribed Maloney, the taint of partiality spread to his case, as well as Hawkins'.

CONCLUSION
For the reasons stated above, we affirm the order of the circuit court of
Cook County vacating defendants' convictions and sentences, and ordering a new
trial.

Affirmed.

[fn1] Carter's case was severed from the Hawkins/Fields trial. Fields, 135 Ill. 2d
at 27.

[fn2] The State limits its clean-hands and injection-of-error arguments to Hawkins.
According to the State, the record contains insufficient evidence of Fields'
involvement in the bribery scheme to enforce these doctrines against him. The
State also contends that, should we decide that Hawkins' petition is precluded by
operation of either doctrine, then the case must be remanded for an evidentiary
hearing on the question of Fields' knowledge of and participation in the bribe.
Because we rule that neither doctrine applies here, a remand is unnecessary.